Ortiz v. Barnhart , 70 F. App'x 162 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 3, 2003
Charles R. Fulbruge III
Clerk
No. 02-51387
Summary Calendar
ROSALIE ORTIZ,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-701-EP
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Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rosalie Ortiz appeals the district court’s judgment that
affirmed the decision of the Commissioner of Social Security
denying disability benefits and supplemental security income.
Ortiz argues for the first time on appeal that the
Commissioner presented a flawed hypothetical to the vocational
expert (VE) and, thus, improperly relied on the VE’s opinion that
there was work available in the economy that Ortiz could perform.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-51387
-2-
The ALJ considered the medical evidence and Ortiz’s
testimony and made credibility determinations. Ortiz’s
representative was permitted to present an alternative
hypothetical to the VE. Because the hypothetical incorporated
the disabilities of Ortiz that the ALJ found to be credible,
the ALJ could rely on VE’s opinion based on that hypothetical.
Boyd v. Apfel, 239 F.3d 698, 706-07 (5th Cir. 2001). Ortiz has
not shown that exceptional circumstances exist that require
review of this claim for the first time on appeal. Kinash v.
Callahan, 129 F.3d 736, 738 n.10 (5th Cir. 1997).
Ortiz also argues for the first time on appeal that
the Commissioner failed to properly evaluate her subjective
complaints of pain in light of the medical evidence in the
record. The medical evidence reflected that Ortiz’s prescribed
medication relieved her joint pain and acute synovitis and
that her systemic lupus erythematosus condition had stabilized.
Because the objective findings did not support the opinions
of the treating physicians and Ortiz’s testimony that she is
disabled from performing any type of work, there is substantial
evidence in the record supporting the ALJ’s determination that
Ortiz does not suffer from disabling pain. See Griego v.
Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). Ortiz has not shown
exceptional circumstances that require the court to review this
issue for the first time on appeal.
No. 02-51387
-3-
Insofar as Ortiz challenges the magistrate judge’s
evaluation of the evidence, the discussion above reflects that
there was substantial evidence to support the ALJ’s determination
that Ortiz does not suffer from disabling pain and has the
residual functional capacity to perform sedentary work with a
sit/stand option.
Ortiz also argues that her case should be remanded for
findings in accord with Watson v. Barnhart, 288 F.3d 212(5th Cir. 2002) for a finding whether Ortiz can maintain
employment. Ortiz does not assert that her condition only
periodically precludes her from working and did not offer
medical evidence that her condition would intermittently prevent
her from maintaining employment or functioning in the employment
context. Because there was substantial medical evidence that
Ortiz could obtain and maintain a job, it is not necessary to
remand the case for the ALJ to make a determination that was
implicit in his initial findings. See Frank v. Barnhart, 326
F.3d 618 (5th Cir. Mar. 25, 2003, No. 01-30714), 2003 WL 1534379at *1.
There is substantial evidence in the record to support
the determination of the ALJ that Ortiz was not disabled.
The decision of the Commissioner denying benefits is AFFIRMED.